Uninsured Motorist Article Published in the TBA Journal

The Tennessee Bar Association has graciously permitted me to write a column on tort law for many years. I must admit that I enjoy writing these articles, although I must also admit that each time the calendar reminder pops-up on my computer reminding me of yet another deadline for yet another article a small groan slips out from my aging body.

The January 2011edition of the Journal is now available. My newest article is titled "Presents From ‘Round Back of the Tree." The article alerts readers to two recent Court of Criminal Appeals cases that may be of assistance to tort lawyers as they attempt to prove John Doe UM claims.

Confused? Here are the first three paragraphs (footnotes omitted). Read them and see if you can figure out where the article is headed.

As we leave the holiday season behind, we notice that the Court of Criminal Appeals left two gifts behind the tree to lawyers who practice personal injury law on behalf of plaintiffs. These are unusual gifts from an unusual source, but they have the propensity to impact tort lawyers and their clients.

The first gift is State v. Hall, where the court held that a trial judge did not err in admitting a 911 call that was made while the defendant was breaking into a house and attacking a victim and continued after defendant left the house. The 911 tape of the victim’s call was admitted into evidence under the excited utterance exception to the hearsay rule set forth at Tenn. R. Evid. 803(2).

An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The rationale for admitting an excited utterance is that “it is likely there was a lack of reflection — and potential fabrication — by a declarant who spontaneously exclaims a statement in response to a startling event. … Second, ordinarily the statement is made while the memory of the event is still fresh in the declarant’s mind. This means that the out-of-court statement about an event may be more accurate than a much later in-court statement.” The Hall court rejected the criminal defendant’s argument that the portion of the tape recorded after the defendant left the house was not covered by the exception, noting “there is no requirement that the cause of the startling event still be present or that the startling event still be ongoing — only that the declarant still be under the stress or excitement from the event.”